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Research On The Rule Of Corroborative Of Cinvil Procedural

Posted on:2015-07-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:X L WangFull Text:PDF
GTID:1226330467967755Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The evidence is the cornerstone of the rule of law, it is fundamental to any legal systems that create rights and obligations, which is key to see whether the evidence will be evaluationed scientific and standardized. Since free evaluation of evidenee replace legal evidence, conscience and rationality become the only standard of the inner confirmed of Judge. However, from the angle of operability, we just see the’ only can be felt but unspeakable’ of conscience and rationality. Actually, despite there are inherent constraint mechanism of logical rules and empirical rule, external constraint mechanism of public the reason of Judge, appeal, retrial, but the subjectivity of the proof have not be changed fundamental, lock and limit the subjectivity and highlights objectivity, has been the world’s proven core topics. In our country, the judge in charge of legal issues and factual issues in litigation structure, the judges’ discretion is the larged in the word, plus justice groups which is mixed uneven in the legal literacy, The objective environment of unindependented judiciary, not experienced the baptism of our legal evidence, which lead the standards are not uniform in evidence evaluation, all that lead the abuse of discretion in the pretense of conscience and rationality.Therefore, desire a system of rules which can help the judge evaluating the evidence became a lasting topic in legal research. For example, the probative force in notarial documents is larger than in Private documents, and the probative in no interested party is larger than in stakeholders. Actually, the rule of the corroborative is rooted in ancient Roman law, Which is influence the judge once in the extreme form of legal evidence and now in the form of institutional inertia. Unfortunately, this effect is not formal and recognize in the long-term, even to be mentioned also be regarded as obsolete and should be abandoned. So, This article attempts to draw and quote the rule in criminal proceedings to guild the evidence evaluation in Civil Procedure. Of course, the rules in criminal proceedings should be simplely introduced to civil Procedure? Whether there is necessity and feasibility? How to build? All this will be this article attempt to answer.This paper is divided into five chapter, The first chapter is the basic theory of the rules of corroborative in civil proceedings. This chapter is the elaboration about the legal semantics, The nature and basic characteristics, Values, Inherent mechanism of the rules of corroborative in civil proceedings, which is demonstrate the effective exploration and solid grasp about the arctile, providing a full picture of the show as well as pave the way for further study of good full text, all is to outstanding the logical relationship with eachother. Theoretically, There are broad and narrow sense, the narrow sense is the rule of’Solitary evidence can not be finalized’, but the broad including the corroboration of defect evidence, overlapping of proofs, Solitary evidence can not be finalized, this article sue the narrow sense. In terms of the nature of the rule, there are the rule of legal evidence, probative force rules, certification rules, quality rules. In short, this chapter is place the principle of evidentiary adjudication as theory of origin, see real trust as the ultimate goal, see new doctrine of legal evidence as theoretical premise, see standard of proof as theoretical basis, it can guide the parties and their agents to proof, play a positive sense in chancery judges and litigants in promote the proceedings.The second chapter is the historical evolution and problems analysis about the rule of the corroborative in civil proceedings. This chapter starting from the history of the corroborative rule, doing research according to timeline from antiquity to modern, depth analysising the developmenting track and all picture about the corroborative rule, so detailed carding the nature and the basic features which the historical evolution of the rule. At the same time, through the comparative analysis between the should be and the actual, comprehensive display the structural defects and the technical issues of the corroborative rule in civil proceedings, for example, the regret of avoidance of legal evidence in terms of the theoretical basis, the lack of logical and systematic ing terms of content and system, the simple and rough in terms of rule set, the lack of awareness in the terms of practice. This is so, mainly because of the following reasons:the first, the legal traditions which are useing ethics to extinguish the litigation, useing ethics to judge and using ethics to ruling, and the historical inertia of emphasis on mediation, both compress the developmenting space of Fine in rules of evidence; the second, the legislative concept of’should be broad rather fine’and the judicial philosophy of’feeling the stones’, leading to the simple legislation which is not meet the requirements of fine judicial; The third, the traditional evidence theory focus only on the static study of evidence, but ignore the dynamic analysis of evidence, and lack of analysis in atomism and holism in evidence evaluation.The third chapter is the comparative study of the corroborative rule in extraterritorial. This chapter has discussed the develepment of the corroborative rule in the Stage Shows evidence of God, the Roman law stage and the stage of Romano-canonical, Thus clearly demonstrated the basic characteristics and the develepment track in the early stages of the history. After1215, the priests was prohibited participated in the trial since the Fourth Lateran meeting. The Europe Continental and England across the sea areas took a completely opposite way. So, focused on the comparing the similarities and differences in common law and civil law rules, we found that despite there are some differences in terms of the role of judges,but the same things are also clear, such as there are provisions in terms of real and real rule of corroborative, the corroborative rule of supportive and polymerizable, and also build the corroborative rule from the perspective of epistemology, the right of evidence collected, the real obligation and the interpretation obligation. On the basis of the comparison above, the third part of this chapter do a in-depth inquiry about the basic elements, the type of corroborative, the principles of setting, so summed for the inspiration and reference for the build of the corroborative rule in China.The fourth chapter is the thinking of construct the corroboratve rule. First, this chapter focused on analyzing the necessity and feasibility to build the corroborative rule. In terms of its necessity, stressing the constraint and normative role in evidence evaluation which the corroborative rule did, focusesing on the proper meaning of the evidence referee doctrine, and stress the corroborative rule is the proper meaning that are the accuracy of the Fact-finding, enhance the acceptability of the judgment and Awareness of the rules and Strengthen citizens’ awareness of the rules; Second, in order to the precise judgement, focus on the action of the corrobotative rule in terms of excluse the evidence may lead to erroneous, inhibiting the irrational factors in the process of cognition, reduce the status of mediation in litigation. Last, Outstanding the corroborative rule can help the judge overcome the drawback of the simple legislation, protect the judge exercise jurisdiction by law. In short, the interdisciplinary of evidence research in extraterritorial national, the dynamic research of proof and the successful legislative experience, shows us a beautiful picture of the corroborative rule, and the solitary evidence can not be finalized rule gained wide social recognition in practice, all this become the feasibility of construction the corroborative rule.The fifth chapter is the building of the corroborative rule. Through the analysis of the above chapters about the basic theory, comparative analysis of ancient and modern and the necessity and feasibility of the corroborative rule, The authors suggest a number of opinions: First, in macro, take Systemic, Equilibrium and Openness as philosophy guide, change the humanity hypothesis of’Almighty Judge and Semi-energy party" to the humanity hypothesis of ’the same’. and go the reform path of from the top to down, establishe a system of ’Supplemented with guidance but based on mandatory’ and ’supplemented with Polymerizable and based on Supportive’; Second, specifically, follow the logical basis of epistemology, build a system of subjective evidence and objective evidence. on the basis of the classification of subjective evidence and objective evidence, to make special provisions for special corroborative evidence; Third, Strengthen the construction of the supporting system for the corroborative rule, strengthen the coordination bligation between judges and parties to promote the civil proceedings. Transition the basis of cross-examination from the epistemology epistemology to the the procedural safeguards, balanced configuration the permissions between the judges and the parties. Stress the command of the proceedings, the interpretation obligation, the power of investigation of judge, the true and complete obligations of the parties, the action of timely obligations, all that should be balanced.‘’...
Keywords/Search Tags:the rule of corroborative evidence, new doctrine of legal evidence, Subjective evidence, Objective evidence
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